Claimant's motion seeking permission to serve and file a late claim was denied, as the Court was unable to find any viable cause of action.
|Claimant short name:||OLOMONSAI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||OHNJA OLOMONSAI, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 8, 2009|
|See also (multicaptioned case)|
Claimant has brought this motion seeking permission to serve and file a late claim.
The following papers were considered by the Court in connection with this motion:
"Motion for Permission to File a Late Claim", Proposed Claim 1,2
Affirmation in Opposition, with Exhibits 3
The Court has carefully reviewed claimant's motion papers, including his proposed claim, and is at a loss in discerning any viable cause of action asserted against the State. Claimant has raised accusations against former Governor Mario Cuomo, apparently contending that Mr. Cuomo was not eligible to serve as either Lieutenant Governor or Governor. He also makes reference to Governor Cuomo's alleged refusal to endorse former New York City Mayor David Dinkins in his attempt to run for Governor, apparently in 1991. Even assuming, for purposes of this application, that these allegations are true, in this Court's opinion they fail to constitute a viable cause of action against the State. For this reason alone, this application must be denied.
Even so, this Court will address other deficiencies in this application for late claim relief. Pursuant to Court of Claims Act § 10(6), any application for a late claim must be brought at a time "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Based on the specific allegations set forth in his proposed claim, as described above, it is readily apparent that claimant has failed to make this application before the expiration of any possible statute of limitations. Furthermore, there is no indication that claimant is entitled to any tolling of the time within which his claim had to be served and filed (Court of Claims Act § 10).
Accordingly, the Court hereby finds that claimant has failed to timely move for late claim relief. As a result, this Court does not have jurisdiction to consider this application and the motion must be denied on this basis.
The Court will also consider the merits of claimant's application pursuant to § 10(6).
In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117).
With regard to excuse, claimant asserts that at the time this claim accrued, he was a senior in high school, and then went to college and after graduation enlisted in the United States Army, apparently contending that he was too busy to attend to this matter. None of these factors provide an acceptable excuse for the delay in serving and filing this claim.
There is no indication that the State had any notice of the essential facts constituting this claim, nor that it had any opportunity to investigate the circumstances underlying this claim. The Court therefore finds that due to the lack of notice and opportunity to investigate, as well as the substantial delay in presenting this claim, the State would be substantially prejudiced should it have to defend this claim.
The Court has previously discussed herein its finding that claimant has failed to establish a meritorious claim. As a result, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).
It does not appear that claimant has any other available remedy.
Based on the foregoing, this Court finds that claimant has failed to timely make this application as required by § 10(6). Furthermore, even after considering this application on the merits, this Court, in its discretion, hereby denies claimant's motion to serve and file a late claim. Accordingly, it is
ORDERED, that Motion No. M-77147 is hereby DENIED.
December 8, 2009
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims